Howard Gillman Knihy

Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation

Police are nine times more likely to kill African American men than they are other Americans -- in fact, nearly one in every thousand will die at the hands of an officer. As eminent constitutional scholar Erwin Chemerinsky powerfully argues, this is no accident, but the horrific result powerfully argues, this is no accident, but the horrific result of an elaborate body of doctrines that allow the police and, crucially, the courts to presume that suspects -- especially people of color -- are guilty before being charged. Today in the United States, much attention is focused on the enormous problems of police violence and racism in law enforcement. Too often, though, that attention fails to place the blame where it most belongs: on the courts, and specifically, on the Supreme Court. A "smoking gun" of civil rights research, Presume Guilty presents a groundbreaking, decades-long history of judicial failure in America, revealing how the Supreme Court has enabled racist practices, including profiling and intimidation, and legitimated gross law enforcement excesses that disproportionately affect people of color. For the greater part of its existence, Chemerinsky shows deference to and empowerment of the police have been the modi operandi of the Supreme Court. From its conception in the late eighteenth century until the Warren Court in 1953, the Supreme Court rarely ruled against the police, and then only when police conduct was truly shocking. Animating seminal cases and justices from the Court's history., Chemerinsky--who has himself litigate cases dealing with police misconduct for decades--shows how the Court has time and again refused to impose constitutional checks on police, all the while deliberately gutting remedies Americans might use to challenge police misconduct. In an unprecedented series of landmark rulings in the mid-1950s and 1960s, the pro-defendant Warrent Court finally imposed significant constitutional limits on policing. Yet as Chemerinsky demonstrates, the Warren Court was but a brief historical aberration, a fleeting liberal era that ultimately concluded with Nixon's presidency and the ascendance of conservative and "originalist" justices, whose rulings--in Terry v. Ohio (1968), City of Los Angeles v. Lyons (1983), and Whren v. United States (1996), among other cases--have sanctioned stop-and-frisks, limited suits to reform police departments, and even abetted the use of lethal chokeholds. Written with a lawyer's knowledge and experience, Presumed Guilty definitively proves that an approach to policing that continues to exalt "Dirty Harry" can be transformed only by a robust court system committed to civil rights. In the tradition of Richard Rothstein's The Color of Law, Presumed Guilty is a necessary intervention into the roiling national debates over racial inequality and reform,k creating a history where none was before--and promising to transform our understanding of the systems that enable police brutality. -- From dust jacket

Worried about what a super conservative majority on the Supreme Court means for the future of civil liberties? From gun control to reproductive health, a conservative court will reshape the lives of all Americans for decades to come. The time to develop and defend a progressive vision of the U.S. Constitution that protects the rights of all people is now. University of California Berkeley Dean and respected legal scholar Erwin Chemerinsky expertly exposes how conservatives are using the Constitution to advance their own agenda that favors business over consumers and employees, and government power over individual rights. But exposure is not enough. Progressives have spent too much of the last forty-five years trying to preserve the legacy of the Warren Court's most important rulings and reacting to the Republican-dominated Supreme Courts by criticizing their erosion of rights--but have not yet developed a progressive vision for the Constitution itself. Yet, if we just look to the promise of the Preamble--liberty and justice for all--and take seriously its vision, a progressive reading of the Constitution can lead us forward as we continue our fight ensuring democratic rule, effective government, justice, liberty, and equality

In The Religion Clauses, Erwin Chemerinsky and Howard Gillman examine the extremely controversial issue of the relationship between religion and government. They argue for a separation of church and state. To the greatest extent possible, the government should remain secular. At the same, time they contend that religion should not provide a basis for an exemptions from general laws, such as those prohibiting discrimination or requiring the provision of services.

Can free speech coexist with an inclusive campus environment?